Scruggs v. Blair

SlMRALl, J.: The bill is brought against Jas. D. Blair and Jno. J. Blair, resident citizens of the state of Louisiana, and the unknown heirs of A. J. Rugby, and W. J. Britton, W. T. Withers, and Lloyd R. Coleman, non-residents, except W. T. Withers, who resides in Hinds county, Miss., and alleges that on the 4th of January, 1859, Rugby, Jno. A. and Jas. D. Blair, partners, under the firm name and style of Rugby, Blair & Co., doing-business in New Orleans, La., purchased, with the partnership assets, a parcel of land in Holly Springs, in this state, set out in the bill, for which a deed was taken in the partnership name; that after this, the firm name, though consisting of the same persons as members, was changed to A. J. [410] Rugby & Co.; that on the 19tb of January, 1862, Messrs. Coleman, Britton & Withers made and delivered to A. J. Rugby & Co., their prommissory note, dated at New Orleans, four monthis after date, for $6,436 00; which note was by Coleman, Britton & Co., indorsed to the complainants, demand and notice being waived. A. J. Rugby & Co. are insolvent, and have no other property; nor has either of them, except the parcel of land aforesaid. Coleman, Britton & Withers have no juoperty in this state, nor has either of them. That on account of the death of Rugby, and the non-residence of the defendants, they cannot recover at law. Prayer is for an equitable writ of attachment, and for decree for sale of the land. The question is whether the complainants have a remedy in a court of chancery. It is quite evident that a creditor cannot proceed by.attachment in equity to make his debt out of the effects or credits or lands of a non-resident, absent, or absconding debtor, on the ordinary principles that obtain in that court. There must be some equity to put in motion this or similar remedial machinery, such as an unsatisfied judgment at law, and inability to appropriate a fund or assets by execution, which may be reached in chancery. Can the relief be granted by virtue of the statute ? The proceedings authorized by the Rev. Code, art. 60, § 3, p. 549, against non-resident and absent debtors, was derived from Virginia statutes of 1744 and 1819. The former of these limited the remedy to cases “ where the non-resident debtor had effects in the hands of a resident party, or a resident party indebted to the non-resident. ” The enlargement made by the latter act, was in addition to the above. “ or against every absent defendant having lands or tenements within this commonwealth.n. There were two classes of cases in which the creditors could resort to a court of equity. The first was to reach the u effects” or “ debts ” in the hands of, or owing by the resident party. The second was -to subject the lands of the non-resident or absent debtor. [411] Our statute of June 7th, 1822, continued in the revision of 1857, embodies the essential features of these two Virginia ■ acts, and should receive the same interpretation which the Virginia courts have placed upon the original. The basis of the jurisdiction is purely statutory, and depends on the condition of facts stated in the statute, to-wit: The absence of the debtor; the presence here of effects belonging to, or a debt due to him; or, third, “ his having lands or tenements in this state. ” Comstock v. Rayford et al., 1 S. & M., 437, arose under the first branch of the statute, to subject property in the hands of the resident defendant to the debts of the absent defendant. It was held that before a creditor at large, without specific lien or judgment at law, could bring the bill, there must be, a resident, and non-resident or absent party defendant; an attachment was irregular, but a proper order for securing the fund should be made. Trotter v. White, 10 S. & M., 012, was much like the preceding case. Trotter, the absent debtor, owed a large sum to the plaintiff, and by means of a false , and fraudulent sale, had passed large property into the possession of the home defendant; it was distinctly announced that the intimation, thrown out in Comstock v. Rayford, that a preliminary attachment might be awarded, was a proper remedial agency. Freeman v. Gwin, 11 S. & M., 62, was in all important particulars, like the former cases, except that the complainant creditor was a non-resident. The main contest Avas as to the jurisdiction. It was urged at the bar that the remedy Avas full and adequate at law, and that there was no element of equity in the bill. The response of the court to this, Avas that they Avere administering a statutory redress, and that in the state from Avhich we derived the remedy, the courts had never required the creditor to ground his bil-1 upon any special predicate of equity congnizance. The case of Zachariah & Kerr v. Bowers, 3 S. & M., 644, sought to subject the lands of the non-resident debtor, and was sustained as a proper bill; 33 Miss. The difference which once existed in the court, as to Avhether [412] the complainant should show, in addition to the facts set forth in the statute, some independent equity, we regard as settled in favor of the opinion, that he is required to do no more than to bring himself, as creditor, within the terms of the statute. The decisions also meet the constitutional objection to the jurisdiction. The constitution of 1832 conferred full jurisdiction in all matters of equity, on the chancery court. These statutes were in force long before, and at the time of, the adoption of the constitution, and the convention must have had in vievT the equity system, as modified, or enlarged by legislation. Although there may be a concurrent remedy at law, and the creditor have a purely legal demand, nevertheless, there may be resort to the equitable remedy. The complainants might, therefore, rest their bill on the terms of the statute, without invoking any special equity as ground, or in aid of the jurisdiction. It not unfre-quently occurs that a hill cannot be referred to any one of the heads of equity cognizance ; and there may he, also, a remedy at law; yet, if that remedy he not adequate and unembarrassed, that of itself justifies a resort to chancery. The land in controversy is averred in the bill to have been purchased with the joint funds, and to be held in the joint name. This converts the real estate into equitable assets ; so that in equity, it will be dealt with and disposed of as joint effects and credits. At law, however, the several partners are tenants in common. On the death of a member, his heirs hold in common with the survivors. A judgment against the survivors would only reach for purposes of- satisfaction their interest. Upon a dissolution of the firm, by the death of one of its members, the credits and personal effects vest, by operation of law, in the survivors, and under judgment against them, the effects of the firm may be sold, and the credits garnisheed. The real estate, however, preserves its distinct qualities, and descends to the heir, who holds in common with the survivors, in trust, for the purposes of the partnership; first, for the benefit of creditors, and second, for the members of the firm and their representatives, accord [413] ing to their several interests as fixed by the articles of co-partnership. A court of equity would regard, land bought and held as was this land, as assets for creditors, to the same extent as personal effects, so far as might be necessary; the residue would immediately resume its quality as real estate. The law is incompetent to administer this trust in favor of creditors. The survivor and the legal representatives of the deceased member may be sued together; but, under a judgment in such a suit, the interest of the decedent could not be made available for the creditor. Complete redress can only be meted out in chancery, when all the interests in the land can be brought before the court, and by one decree, the entire estate converted into money, for creditors. Unless this be done, the legal representative must, through the' probate court, or the chancery court exerting- that jurisdiction, sell the land of the decedent. The equity court, by one suit, delights to cover the entire ground, and comprehend and settle all conflicting rights in one decree, and thereby avoid the expense, delay, and multiplicity of suits. Dyer v. Clark, 5 Metc., 562; Galbraith v. Gage, 16 B. Monroe, 631; Buckley v. Buckley, 11 Barb., 43; Markham v. Merritt, 7 How., 444. The decree of the chancellor, sustaining the demurrer and dismissing the bill is reversed, and decree here overruling the same, and leave given to plead or demur in forty days, with leave to chancellor to enlarge the time.